JONATHAN COHN JANUARY 24, 2011
Yes, it looks like Senate reformers are going to settle for, at best, a few crumbs.
This is not a big deal.
First, any reform, including moving to a pure majority-party-rules Senate, would not have made much of a difference as far as legislation is concerned in this Congress. There’s very little that could get 51 votes in the Senate, 218 in the House, and the president’s signature and not get 60 in the Senate. Reform could make a bit more difference on nominations, but the actual proposals involved were unlikely to get there. I continue to believe that the “make them talk” reform is pointless and wrongheaded, and in practice wouldn’t have actually changed anything; the demise of “live” filibusters was for the convenience of the majority, not the minority, and it’s unlikely that the Merkley/Udall plan would have changed that. And the idea of dropping the possibility of filibustering the motion to proceed, whatever its merits overall, is irrelevant to nominations, where it’s already the case that the motion to proceed cannot be debated. That leaves secret holds—and there, I continue to believe that the issue is holds, not their secrecy.
Second, whatever Tom Udall has been saying, there’s nothing special about the first day of the Congress. There is, in fact, a fair chance that we’re going to have serious nominations gridlock in the 112th Senate, much worse than in the 111th, with 41 or more Republicans simply refusing to vote for anyone that Barack Obama nominates (or, perhaps, anyone he nominates for certain higher-profile categories, such as circuit court appointments, or cabinet-level appointments). If that’s the case, there’s nothing at all in the rules or the Constitution to keep Democrats from revisiting the rules, and proposing (and if necessary invoking by simple majority) reforms a lot more significant than what Udall and Merkley were talking about at this point.
Third, this has always been, I believe, about the long haul. Liberal activists are going to continue to demand in 2012, even more than they did in 2010, that Senate candidates run on filibuster reform. Remember, Democrats elected in the middle of the last decade were making the exact opposite pledges; they were valiantly standing up for the traditions of the Senate and minority rights against George W. Bush, Trent Lott, and Bill Frist. It takes some time for these things to change, and if Democrats retain the White House and a Senate majority after 2012, reform becomes a lot more likely—and that’s even more the case if the Democrats also win the House, and the filibuster again becomes a major factor in legislating.
The Merkley/Udall proposals, in my view, have never gone beyond the superficial and the symbolic. I continue to believe that the status quo hasn’t been stable since Bob Dole shifted to a 60 vote Senate in 1993; any time the same party controls both Houses of Congress and the White House, the pressure for Senate reform is going to start building. My hope, as someone who opposes both the full 60 vote Senate and simple majority party rules, is that we’ll wind up getting a compromise that enables individual Senators to still have plenty of influence. Either way, however, I’m confident that (assuming the reports are correct) the demise of Merkley/Udall is just a very minor bump on the road to whatever the Senate will look like in the future.